[OPINION] Results are not valid on account of non-transmission by polling units - Washington Osifo

INTRODUCTION

As the collation of the results of the just concluded Presidential election in the Country on the 25th of February 2023 trickle in and are collated by INEC, some political and legal issues have arisen. Whilst this is expected, the frenzy and the nerve-breaking approach by some political parties in bringing to the fore their dissatisfaction with the electoral process and the results declared so far is worrisome. These parties have thrown caution to the wind. They are calling for violence and, in extreme cases, a return of the military, all because they feel or assume an alleged non-compliance with the provisions of the Electoral Act 2022. However, some of the complaints by these political parties appear not to have any foundation in law, especially the extant Electoral Act, 2022.

1.2 INTERROGATING THE REQUIREMENT OF "TRANSMISSION" OF RESULTS BY INEC.

Undoubtedly, one of the celebrated innovations in the extant Electoral Act is the digitalization of the electoral process. The requirement of the mandatory use of electronic instruments for the accreditation of voters before voting at any election was a fundamental improvement on the Electoral Act of 2010. Specifically, whilst giving full leverage to INEC to deploy electronic technology for elections, section 47 (2) of the Electoral Act provides as follows:

To vote, the presiding officer shall use a smart card or any other technological device that may be prescribed by the Commission for the accreditation of voters to verify, confirm or authenticate the particulars of the intending voter in the manners prescribed by the Commission.

This provision gave the Commission the vent to introduce its electronic device, popularly called the Bimodal Voters Accreditation System (BIVAS) firstly, for the conduct of the off-season elections held in Anambra, Ekiti and Osun States and currently the 2023 General Elections.

The BIVAS machine, having been expressly incorporated into the Electoral Act 2022, was expected to be fully deployed for the current general elections. The successes associated with its use in the off-circle polls are expected to be replicated. To back up the use of this device at the elections, INEC, in its Regulations and Guidelines for the Conduct of the Elections, made more detailed provisions for its use by its officials at the elections.

Specifically, paragraphs 13-22 of the Regulations provided for the step-by-step use of the BIVAS machines for the accreditation of voters and the consequences of the failure/malfunctioning of the machine on the day of the election. Paragraph 14 (a) pointedly provides as follows:

No person shall be allowed to vote at any polling unit other than the one at which their name appears in the Register of Voters. They present their PVC to be verified using the Bimodal Accreditation System (BIVAS) or otherwise as determined by the Commission.

Furthermore, paragraph 18(a) of the Regulation strengthens this position thus:

Under Section 47(2) of the Electoral Act 2022, a person intending to vote shall be verified to be the same person on the Register of Voters by the use of the Bimodal Voters Accreditation System (BIVAS) or other devices approved by the Commission, in the manner prescribed in these Regulations and Guidelines.

Clearly, from these provisions, the emphasis on the deployment of electronic technology for the conduct of elections in the Country is now restricted to the use of BIVAS for the accreditation of voters.

The controversy over the use of Smart Card Readers in the 2015 and 2019 elections was resolved by the Electoral Act 2022. In the celebrated case of Peter Nyesom Wike v Peterside Dakuku & Ors (supra), the Supreme Court had held that the Electoral Act 2010 made no specific and direct provision for the use of the Smart Card Reader for the accreditation of voters.

This decision threw the use of the Smart Card Reader into a state of flux until the review of the Act with the extant Electoral Act.

For now, there is no provision for electronic voting because the BIVAS is not an instrument for voting or recording the votes cast at an election. It was designed specifically and solely for the accreditation of voters.

However, in exercising its discretionary powers and deference to the clamour for the electronic transmission of results of votes cast at the polling units to a central/back-end server, the Commission mandated that the BIVAS machine be equally used for the transmission of the results. However, it is worth noting that the extant Electoral Act did not make the "transmission "of results by INEC at any stage of the election and collating process a mandatory requirement. Additionally, the Act did not make the electronic "transmission" of such results a pre-condition for the validity and acceptability of such results.

Instead, on the contrary, the Act emphasized the physical sorting of ballot papers after voting, counting the votes scored by the respective parties/candidates and entering these results into the appropriate Forms EC8 Series. Specifically, at the level of the polling unit, what is required is for the presiding officer to enter the respective votes of the political parties into the requisite Form EC8A, announce the said result loudly and after that, paste the same in a conspicuous place at the said polling unit.

The reference to the "transmission" of results after that was couched in a manner consistent with record keeping, protecting the integrity of the said Form EC8A and in the overall pursuit of transparency and credibility of the process.

Specifically, section 60 (1) – (6) of the Act surmised the steps to be taken at the close of polls at the polling unit for the counting and publication of the results. There is no reference to the transmission of the results as a pre-requisite. It is trite law that the express mention of the specifics means excluding anything not so mentioned (Orius Exclusio Rule). Therefore, the 'transmission" of the results at the polling unit cannot be read into this section by anyone, including INEC. Furthermore, section 64 (4) ( a)-(b) of the Act dealing with the power of a Collation Officer only mandated them to use the BIVAS to confirm the number of accredited voters as recorded therein with the number of votes recorded for the parties. This is, however, in cases where there is a discrepancy between the number of accredited voters and the number of votes scored by the political parties.

Just as was the case with the accreditation of voters, the subsidiary Rules and Guidelines for the Conduct of the Elections made more detailed and specific provisions for the transmission of collated results at the elections. Although the entire gamut of paragraph 35 (a) (i)-(vi) of the Regulations merely adumbrated the provisions of section 60 of the principal Act, it is paragraph 38 that deals directly with the issue of transmission of results. Specifically, it provides thus:

Upon the completion of the polling unit voting and results procedure, the Presiding Officer shall:

(i) Electronically transmit or transfer the result of the Polling Unit direct to the collation system as prescribed by the Commission.

(ii) Use the BIVAS to upload a scanned copy of the EC8A to INEC Result Viewing Portal (IReV), as the Commission prescribes.

(iii) Take the BVAS and the original copy of each form in tamper-evident envelopes to the Registration Area/Ward Collation Officer in the company of security agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Center.

From the opening statement in paragraph 38 above, it is deducible that transmission comes after the voting, counting and publication of the results at the polling units have been completed. It was not intended or designed to be a condition precedent for the validity of the results properly documented in the requisite Form EC8A, which was already published at the polling unit.

See also section 64 (5) & (6) of the Act, which equally provided for the use of a smart card reader or any other electronic device for the resolution of any discrepancy in the number of accredited voters and the votes recorded by a presiding officer. What is more, what is "transmitted' is a scanned copy of the said Form EC8A. In this context, a scanned copy is a secondary copy of the original document, i.e. Form EC8A. Thus, it is, therefore, arguable that where there is no transmission of the results in form EC8A. Still, the results in form EC8A already distributed to the party agents and security agents and already published are available, and the results remain valid.

CONCLUSION

It is, therefore, plausible to assert that the current furore by some political parties at the INEC Central Collation Office in Abuja over the non-transmission of the results being collated by the INEC Chairman and the statutory returning officer of the Presidential election is baseless and untenable. This is more particularly so, as the said results have gone through the layers of filtration and publication at the polling units, RAC/Ward Levels, and State Levels before ending at the final stage of the presidential collation office.

Thus, in line with well-settled principles of law, results that passed through these stages enjoy a presumption of regularity. Therefore, the disputing political parties have the burden of proof to show and prove specific discrepancies and inaccuracies that they have discovered with the results and bring the same formally to the notice of INEC.

To base their arguments and drama over the non-transmission of the results or the delay in such transmission to impute fraud against INEC and the "benefiting" political party (ies) in some selected states where they lost or are losing is a lazy and mischievous route. This should be discouraged and condemned by well-meaning citizens and lovers of this Country. The electoral body should be allowed to complete its job, and any grievance with the process or the results be taken to the appropriate form for adjudication and resolution, i.e. the Courts.

Opinion by Washington Osa Osifo, PhD.

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